Euthanasia and the society

by Pralika Jain, Indlaw News, Nov 26,2008

New Delhi, India -- Euthanasia is mainly associated with people with terminal illness or who have become incapacitated and dont want to go through the rest of their life suffering. A severely handicapped or terminally ill person should have the right to choose to live or die. The right to choose to live or die should not be a right allocated for bodied individuals of sound mind but to all human beings. Euthanasia is a controversial issue which encompasses the morals, values and beliefs of our society.

The main argument comes down to whether or not someone should have to prolong their life even though their death may be near and have to suffer through that time period. The people that go against euthanasia feel that if this is legalized and not looked upon as murder it will lead to people in hospitals and nursing homes not receiving the treatment that may be necessary for them to sustain life. While people on the other side of the argument feel that people that cannot carry on a productive lifestyle under which they are under high amounts of suffering and are lying around waiting for their day of death to come should not have to be put through this torture.

Life is taken for granted all too often; people always look for the shortcuts, the easy way out. Death should never be a persons last resort; there will always be an alternative. Humans cannot be compared to animals either. We cant be taken to a veterinarian to be put to sleep. It is immoral and dehumanizing. One of the greatest minds in history that:

Firstly, under the head of necessary duty to oneself: He who contemplates suicide should ask himself whether his action can be consistent with the idea of humanity as an end in itself. If he destroys himself in order to escape from painful circumstances, he uses a person merely as a mean to maintain a tolerable condition up to the end of life. But a man is not a thing, that is to say, something which can be used merely as means, but must in all his actions be always considered as an end in himself.

People rarely take into consideration how precious life is. Feelings of depression and guilt often overwhelm the sick. They only think of one way out. If euthanasia were to be legalized, the already declining morals and ethics of this country would be further compromised. Making it legal to kill is immoral, and goes against our duties in society.

Types of Euthanasia

There are two types of euthanasia, active and passive. Active euthanasia is the intentional killing of a person by medical personnel either by a lethal injection or by denying ordinary means of survival. The act of euthanasia called passive euthanasia is committed by denying or withholding ordinary medical care to a patient.

The act of mercy killing can be compared to that of active euthanasia. An example of mercy killing takes place every day without much thought if it is right or wrong. Family pets such as dogs and cats are, put down, when the owner sees that the animal is in constant pain due to illness, most people feel that it is the humane thing to do. This type of humane treatment for animals has been taking place for years. It can not be understood that society would let a human life suffer for years. Forcing someone who no longer wants to live, to live a life full of pain and misery. The humane response to this would be choosing euthanasia, giving freedom to the individual from their pain and unhappiness.

Euthanasia in India

India is a country highly influenced by religion and orthodox beliefs. It is a cosmopolitan country with an amalgamation of many cultures, traditions and religions.

The religions which come close to the acceptance of euthanasia and are prevalent highly in the Indian society.

The first is Hinduism, which concentrates on the consequences of actions. Their doctrines outline that euthanasia cannot be allowed, as it breaches the teaching of ahimsa (doing harm). However, in contrast to this, doing a good deed would be fulfilling a moral obligation.

The second is Buddhism. Buddhists believe the way a life ends, will influence greatly the way the next life begins. The transition between an existing life and the next depends on an individuals Karma at the point of death; however, there is no telling if the next life will be an improvement from the last. When a Buddhist dies their state of mind should be selfless, enlightened, free of anger, hate or fear.

The current legal position on euthanasia and assisted suicide in India

In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. Euthanasia and suicide are different, distinguishing euthanasia from suicide, Lodha J. in Naresh Marotrao Sakhre vs Union of India observed:

Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating ones own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.

The law in India is also very clear on the aspect of assisted suicide. Abetment of suicide is an offence expressly punishable under Sections 305and 306 of the IPC.

Moreover, after the decision of a five judge bench of the Supreme Court in Gian Kaur vs State of Punjab[1] it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it.

Euthanasia and the law

Currently, under Canadian law euthanasia is prohibited.

In Holland euthanasia has been accepted, in principle for terminally- ill patients, on request. Even though euthanasia is not yet legal in Holland, it is legally tolerated.

Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assistance in dying in very specific cases, under very specific circumstances. The law was proposed by, Els Borst D66 minister of health. The procedures codified in the law had been a convention of the medical community for over twenty years.

The law allows medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:

(1) the patients suffering is unbearable with no prospect of improvement;

(2) the patients request for euthanasia must be voluntary and persist over time (the request can not be granted when under the influence of others, psychological illness or drugs);

(3) the patient must be fully aware of his/her condition, prospects and options;

(4) there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above;

(5) the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present; and

(6) the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents).

The doctor must also report the cause of death to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether a case of termination of life on request or assisted suicide complies with the due care criteria. Depending on its findings, the case will either be closed or, if the conditions are not met brought to the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the validity of a written declaration of will of the patient regarding euthanasia (euthanasia directive). Such declarations can be used when a patient is in a coma or otherwise unable to state whether they want euthanasia or not.

Euthanasia remains a criminal offense in cases not meeting the laws specific conditions, with the exception of several situations that are not subject to the restrictions of the law at all, because they are considered normal medical practice:

(1) stopping or not starting a medically useless (futile) treatment;

(2) stopping or not starting a treatment at the patients request;

(3) speeding up death as a side-effect of treatment necessary for alleviating serious suffering; and

(4) Euthanasia of children under the age of 12 remains technically illegal.

Settling the debate

A close perusal of the arguments against euthanasia that have been summarised above tends to indicate that all the talk about sanctity of life notwithstanding, the opposition to euthanasia breeds from the fear of misuse of the right if it is permitted. At this juncture it would not be out of place to mention that the liberty to die, if not a right, may be read as part of the right to life guaranteed by Article 21 of the Constitution of India.

True that the Supreme Court has held that such an interpretation of Article 21 is incorrect, but it is submitted that one may try to read the freedom to die as flowing from the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England (refer to the Section dealing with position of euthanasia in other countries). Since the said rights in turn have been held to be included within the ambit of Article 21, the freedom to die too would logically be covered by Article 21.

This argument is put forward as a possible solution since such questions were not put before the Apex Court in Gian Kaur case. It is submitted that in the present scheme of criminal law it is not possible to construe the provisions so as to include voluntary euthanasia without including non-voluntary and involuntary euthanasia. Parliament should therefore, by a special legislation legalise voluntary euthanasia while expressly prohibiting non-voluntary and involuntary euthanasia. Legalising euthanasia would not have any effect on the provisions relating to suicide and abetment thereof as euthanasia and suicide are two completely different acts.